Abstract
In this chapter we discuss both the moral and constitutional conception of children’s rights. The moral conception has been debated since the seventeenth century by Thomas Hobbes, John Locke, John Stuart Mill and Herbert Spencer. All except Spencer accept the idea that children have none of the so-called “liberty rights” possessed by adults. This idea is reflected in state laws denying such rights to children, including the right to freedom of expression when at school. But in a series of Supreme Court cases beginning in 1967, the U.S. Supreme Court declared that children are persons who are possessed of fundamental rights that the state must respect. Included among these rights is the right to freedom of expression. In this chapter we consider several Supreme Court cases introducing this right and later restricting its scope because of its inevitable conflict with another idea: children are human beings who are always in custody of their parents, of the school they attend, or ultimately of the State. We conclude the chapter by discussing several theories that attempt to resolve the dilemma of conceiving children as both persons with fundamental rights and as human beings who are always in some form of custody.
“Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”J. Abraham Fortas, Tinker v Des Moines School District (1969)
“Juveniles, unlike adults, are always in some form of custody … Children, by definition, are not assumed to have the capacity to take care of themselves.” J. William Rehnquist Schall v Martin (1984)
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Notes
- 1.
We do not make it illegal to engage in BASE jumping, despite the relatively high rate of death and injury. “BASE jumping sees participants leap from a cliff, bridge or even skyscraper and quickly deploy their parachutes before reaching the ground, wingsuit flyers – a subsection of BASE jumpers – don a winged suit that allows them to control their movement and swoop like a bird of prey, reaching speeds of up to 200 mph in the process. Only last year, three leading lights of wingsuit flying died after jumping from a helicopter over Lütschental in Switzerland. In 2013, stuntman Mark Sutton, who skydived into the Olympic opening ceremony at the start of London 2012, was killed after crashing into a ridge near Martigny at the Swiss-French border. In a report published in 2007, a study of the results of 20,850 BASE jumps between 1995 to 2005 at the Kjerag Massif in Norway revealed that during this 11-year period there had been 82 nonfatal accidents (1 in every 254 jumps) and 9 fatal accidents (1 in every 2317 jumps)” (Soreide et al. 2007).
- 2.
Literally “parent of the country.” In this context it refers to the state’s role in protecting children.
- 3.
“A constitutional doctrine in which a court weighs an individual’s rights with the rights or powers of the state.” (Fisher, 19).
- 4.
478 U.S. at 683 and 685. The following excerpt from Fraser’s speech was at the center of the controversy: “I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm...Jeff Kuhlman is a man who takes his point and pounds it in... He doesn’t attack things in spurts—he drives hard, pushing, and pushing until he finally succeeds. Jeff is a man who will go to the very end—even the climax for each and every one of you.”
- 5.
478 U.S., at 689, n. 2.
- 6.
478 U.S., at 690.
- 7.
Standards of obscenity were set in Roth v. United States 354 U.S. 476 (1957), and Miller v. California 413 U.S. 151 (1973).
- 8.
For example, the Bethel court continued to assert that children have the constitutional right to express their political opinions in public school.
- 9.
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976). The Court declared unconstitutional part of a Missouri abortion statute requiring an unmarried minor female to acquire the consent of her parent(s) or guardian(s) in order to have an abortion performed (unless a physician, in order to save her life, certifies the abortion). Justice Blackmun, delivering the majority opinion, famously wrote, “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” In this case the relevant right is the “right of personal privacy, or a guarantee of certain areas or zones of privacy…(which) encompass a woman’s decision whether or not to terminate her pregnancy.” Blackmun conceded that although the Court “long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” upon examining whether there is any “significant state interest” in conditioning an abortion on the consent of a parent, he found that there is none. Parental interest in the termination of a child’s pregnancy “is no weightier than the right of privacy of the competent minor mature enough to have become pregnant.” The right of privacy was again invoked in Carey v. Population Services International. In this case, which reached the Supreme Court in 1977, the Court overturned a New York law prohibiting the distribution of non-prescriptive contraceptives to minors under the age of 16 years. Justice Brennan, writing for the majority, declared: “In a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive.” The Court rejected the Attorney General’s argument that New York had a legitimate interest in protecting morality by casting doubt on his contention that limiting minors’ access to contraceptives substantially discourages early sexual behavior. Moreover, the Court concluded, “It would be plainly unreasonable to assume that the state has prescribed pregnancy and the birth of an unwanted child or the physical and psychological dangers of an abortion as punishment for fornication.”
- 10.
Before turning to an examination of the next concept of children’s rights, we take a brief look at the Harvard claim that a child may possess a constitutional right of lesser magnitude than an adult possesses if “the values animating a given constitutional provision were not as applicable to children as adults.” Although we can accept the implication that this may be the best way to interpret the Constitution it is not clear why the values relevant to the amendments should not be as applicable to older children as to adults. On the basis of what criterion are we to decide this? In the case of free speech, it might be said that the “animating value” is the value of knowing the truth. That is, when speech is free, we are more likely to make progress toward discovery of the truth than we are when speech is restricted. But why should this value not be as applicable to high school students as it is to college students or other adults? This question remains unanswered.
- 11.
A more realistic example of how a right-in-trust can be violated is the practice in some cultures of female genital mutilation. In this case, the relevant (violated) right is the right to sexual freedom. Although a young girl is not capable of sexual pleasure, her parents could violate her right to sexual freedom now by mutilating her genitals, making it physically impossible for her to enjoy herself sexually when she becomes an adult.
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Houlgate, L.D. (2017). Children, Parents and the State. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_10
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